7.  The applicant was born in 1972 and lives in London.
8.  On 2 February 1998 the applicant was convicted of causing grievous bodily harm with intent. She was found to be suffering from a mental illness. She was detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). She applied to a Mental Health Review Tribunal (“MHRT”) for her discharge from detention in hospital.
9.  On 24 May 1999 the MHRT first considered her application. It adjourned in order, inter alia, to obtain a psychiatric report from a Dr Hamilton which was to address the eligibility of the applicant for a conditional discharge from hospital.
10.  On 16 August 1999 the MHRT resumed its hearing of the applicant's application. It had before it the report of Dr Hamilton, which expressed the view that the applicant was not ready for discharge. Furthermore, the psychiatrist in charge of the applicant's care, Dr O'Grady, and a social worker gave evidence to the MHRT stating that they were opposed to the applicant's discharge. They proposed that the applicant should instead be transferred to hostel-type accommodation, under the care of a supervising consultant psychiatrist.
11.  The MHRT nevertheless concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside at the home of her parents, that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her.
12.  In coming to its decision, the MHRT answered the three questions below as follows:
13.  The MHRT deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed.
14.  On 30 September 1999 the psychiatrist responsible for supervising the applicant in the community, Dr Kennedy, saw her with two members of his team. He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He described his consultation with the applicant in a letter to Dr O'Grady, dated 6 October 1999, in which he wrote, inter alia:
“I made it clear that I would not consider it safe to supervise [the applicant] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.”
15.  Dr Kennedy made clear that he was in no doubt that the next stage in the applicant's treatment, rehabilitation and risk management should take place near her family, but in a medium-security unit or at a registered mental nursing home. Alternatively, he suggested asking one of his colleagues, or one of the general psychiatrists at St Anne's Hospital, whether they would be willing to supervise the applicant on conditional discharge to her parents' home.
16.  On 11 October 1999 Dr O'Grady wrote to the MHRT. He stated that the purpose of his letter was to give the MHRT advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant. He explained that both Dr Hamilton and Dr Kennedy were agreed that it would be difficult to manage her should she be discharged directly to her parents' home. He continued:
“In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal ... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [that she] should go through a further period of rehabilitation in the community to prepare her fully for community living.”
17.  On 19 October 1999 Dr O'Grady again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in the North London Forensic Service (“the NLFS”) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal. As it transpired, none of those psychiatrists was prepared to do so.
18.  On 15 November 1999 the health authority responsible for the area in which the applicant lived (“the health authority”) requested the director of the NLFS to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision.
19.  On 2 December 1999 the NLFS informed the health authority that the applicant's new responsible medical officer, Dr Duffield, was not satisfied that the applicant should return home. However, he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after-care supervision for the applicant were she to be discharged to her parents' home.
20.  On 15 December 1999 the NLFS wrote to the health authority to confirm that no consultant forensic psychiatrist from the NLFS was willing to supervise the applicant in the community. Furthermore, it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community. The letter noted that most private independent sector providers concentrated on acute and in-patient care only.
21.  On 17 December 1999 Dr Duffield wrote to the MHRT to advise it that its conditions had not been complied with so far, and the reasons therefor.
22.  In December 1999 and January 2000 the health authority wrote to the clinical directors of the forensic psychiatry services in London, Hertfordshire and Essex, identifying nine units in addition to the NLFS. They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her supervising consultant forensic psychiatrist under the terms laid down by the MHRT. None was willing or able to assist.
23.  The health authority subsequently wrote to both national and private institutions in Cambridgeshire and Northamptonshire with the same request. Once again, no one was prepared to comply with the conditions set by the MHRT.
24.  The health authority concluded that there were no further steps that it could take.
25.  On 3 March 2000 Dr Kennedy wrote to the Home Office, advising it of his opinion that the conditions imposed by the MHRT were impossible to meet. He therefore requested the Home Secretary to consider exercising his powers under section 71(1) of the 1983 Act to refer the applicant to an MHRT. The Home Secretary complied with that request on 17 March 2000.
26.  On 3 December 1999 the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the MHRT, which was preventing her discharge from hospital. She sought, inter alia, the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the MHRT.
27.  On 18 January 2000 the High Court granted the applicant permission to apply for judicial review. The Secretary of State for Health declined to intervene in the proceedings, but made the following observations:
“The Mental Health Act provides an established legislative framework in this and similar cases designed to safeguard the interests of patients. As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted Mental Health Review Tribunals ... It is a matter for the Tribunal whether they decide to order a conditional discharge against the advice of the [Responsible Medical Officer].”
28.  On 9 June 2000 the High Court judge (Mr Justice Burton) heard the applicant's substantive application for judicial review. The applicant argued that she was entitled to be discharged from hospital; that the health authority was in breach of its duty under section 117 of the 1983 Act for failing to provide her with the necessary services to comply with the conditions of the MHRT; and that the failure to comply with those conditions within a reasonable period of time was in breach of Article 5 of the Convention.
29.  The judge rejected the applicant's application. He held that, under section 117 of the 1983 Act, the health authority was not under an absolute duty to implement the conditions of the MHRT, but only a duty to take all reasonable steps to attempt to satisfy those conditions. The judge further held that, on the facts, the health authority had complied with that duty. He further rejected the applicant's suggestion that any of the psychiatric consultants had “thwarted” the conclusions of the MHRT, holding that doctors were both entitled and obliged to exercise their own professional judgment.
30.  On 24 August 2000, following the reference by the Home Secretary on 17 March 2000 (see paragraph 25 above), a differently constituted MHRT considered the applicant's case afresh. It concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside in accommodation approved by her responsible medical officer, that she accept to be supervised and take the medication prescribed by the latter, and that she accept to be supervised by her social supervisor.
31.  The MHRT gave the same answers as the first MHRT to the questions set out in paragraph 12 above. It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. It further expressed the following as part of its reasoning:
“... we consider that it is appropriate that [the applicant] should remain liable to recall to hospital. The critical issue, we feel, is that Miss Kolanis's current good mental health is dependent, in our view, upon her continuing to receive her medication.
Our hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period. We consider that, bearing in mind that Miss Kolanis had a legitimate expectation a year ago of being released into the community almost at once, her [Responsible Medical Officer] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent. Having seen Miss Kolanis, it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her.”
32.  On 23 December 2000 the applicant was conditionally discharged from hospital to a resettlement project hostel in London.
33.  Subsequently, the Court of Appeal granted the applicant permission to appeal against the judgment of the High Court of 9 June 2000 in her judicial review proceedings. It recognised that, in the light of the applicant's conditional discharge, which had occurred subsequent to the judgment of the High Court, the issues raised on appeal were, in one sense, academic. However, permission to appeal was granted as a result of the importance of the issues raised.
34.  On 21 February 2001 the Court of Appeal dismissed the applicant's appeal. It agreed with the interpretation of section 117 of the 1983 Act that had been the basis of the decision of the High Court judge (see paragraph 29 above).
35.  In paragraph 16 of his judgment, Lord Phillips set out the effect of an earlier judgment of the House of Lords in R. v. Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [1987] 3 All England Law Reports 8 (“Oxford”) as follows:
“Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions. In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal. The patient was not entitled himself to initiate a reference for twelve months. The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State. The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v. the United Kingdom ...”
At the time at which the facts in the present case arose, no separate relief was available to the applicant under the Human Rights Act 1998 (which incorporated the Convention directly into domestic law). Nevertheless, Lord Phillips proceeded on the basis that, where there was no conflict with precedent, the correct approach had always been to interpret legislation in a manner that was consistent with the Convention. He therefore addressed the human rights issues in the case as follows:
“32.  Does the legislative scheme, as interpreted in [Oxford], violate the right to liberty conferred by Article 5 of the [Convention]? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the Tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in the case of Johnson, the Tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur. 33.  Where (i) a patient is suffering from mental illness and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court in Winterwerp are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital. 34.  If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a Tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by Article 5. 35.  Very different considerations apply to a factual situation such as that considered by the Strasbourg Court in Johnson. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by Article 5 § 1 (e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson suggests that the statutory regime as interpreted in [Oxford], may not be consistent with Article 5. If the Tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.
36.  The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by Tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in [Oxford]. ...” 36.  During the course of his judgment, Lord Justice Buxton opined as follows:
“39.  The effect of Article 5 § 4 of the [Convention] is to entitle a person in the situation of [the applicant] to have the lawfulness of her detention decided by a body, within the system of the State that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the Mental Health Review Tribunal (MHRT). One necessary characteristic of such a body, if it is to meet the requirements of Article 5 § 4, is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see ... X v. the United Kingdom[judgment of 5 November 1981, Series A no. 46] ... 40.  In the present case, the MHRT concluded that the detention of [the applicant] would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included cooperation by [the applicant] with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the State. If that order were to be effective, as Article 5 § 4 requires, such supervision had to be provided. 41.  Johnson ..., paragraphs 66 and 67, seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of Article 5 § 1 is committed by the State if, once the MHRT has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the State. 42.  In applying that part of the Court's jurisprudence, I would not make the distinction drawn by [Lord Phillips], in paragraph 32 of his judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson, to the prospect of recurrence. In both cases, there is continued detention; the role of the MHRT in both cases is to exercise the court-like functions required by Article 5 § 4, and under the jurisprudence of Article 5 § 4 the national authorities are equally bound to respect and act on the determination of the MHRT in either case. 43.  There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is 'of a kind or degree warranting compulsory confinement' to decisions that were not taken with that formulation expressly in mind. In [the applicant's] case, the MHRT answered 'Yes' to the question: 'Is the Tribunal satisfied that the patient is not now suffering from mental illness ... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?', but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment. That is not a clear-cut decision of the type that Winterwerp seems to assume. 44.  However that may be, under the [Convention] jurisprudence ... once the MHRT made a decision as to [the applicant's] release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson, of indefinite deferral of the release that had been ordered by the MHRT. That deferral would arguably entail a breach of the [Convention]. The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here. 45.  In raising the possibility that [the applicant's] detention became unlawful I have not overlooked [Lord Phillips's] view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in [Convention] terms is the ruling of the MHRT, the determining body created by Article 5 § 4. If the ruling of the MHRT is frustrated, in a case where under the [Convention] jurisprudence the subject should no longer be detained, then the subject is deprived of her Article 5 § 4 protection, as (I think it to be clear) the [Court] would have held in Johnson had the issue not been determined already under Article 5 § 1: see paragraphs 69-72 of the judgment. 46.  I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in common-sense terms, but also in view of the emphasis placed in the jurisprudence of the [Convention] upon the judgment of the national authorities: see for instance the observations of the [Court] in Luberti v. Italy [judgment of 23 February 1984, Series A no. 75] at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the judgment in Johnson as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill. The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of [Lord Phillips's] judgment. If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in [Oxford], then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [Convention]. That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5 § 4 requires to be respected.
... 48.  ... [the applicant] may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained. The State is responsible for the whole of these circumstances. That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT's decision: see the last sentence of paragraph 67 of the judgment. The circumstances of [the applicant's] case might, therefore, by the same token found a successful complaint in Strasbourg.”
37.  Lord Justice Sedley, during the course of his judgment, expressed the following view (in paragraphs 55 and 56):
“... more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5 § 4, at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.
... I am rather less positive than Buxton LJ in looking to Strasbourg to afford [the applicant] a remedy that cannot be afforded here. It seems to me ... that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.”
38.  On 3 July 2001 the House of Lords refused the applicant's petition of appeal against the judgment of the Court of Appeal.